More on the lengths a hospital will go through to protect their EHR from discovery

At "The lengths a hospital will go to in order to protect their EHR - Motion for Reconsideration of Denial of Motion for Reconsideration of Denial of Objections" I wrote about obstruction of litigation by the defense regarding a case where an EHR contributed to patient injury and death.

The major basis for the new "Motion for Reconsideration" (a request for the court to reconsider its prior denial of an earlier Motion for Reconsideration of an initial court decision to dismiss defense objections to the Complaint) is this.  From the actual filing (emphases mine):

(click to enlarge)

Here is likely why the court "never addressed the issue":  they don't have time to address frivolous claims.  Neither does the Superior court that also declined to hear this argument.  (It's actually the defense who never addressed the following in all their filings):

From the official publication of the Civil Procedure Rules Committee in the state, effective a decade ago:

That's pretty clear.  One certificate for non-defendants for whom the defendant is vicariously liable.  Further, a decade ago recommendation 200 also was approved and added to the note; the medical professional providing the justifying statement doesn't even need to name the 'other professionals who deviated.'

The mandated Certificate was timely filed, as was a separate Certificate of Merit for direct corporate liability in the malpractice suit.

Further -  from the actual mandated Certificate of Merit document, direct from the State code:

I don't think the Courts expect parties to edit their documents to accommodate their own whims.

The only option for identifying those sued is “Name of Defendant.”  No fields are present specifying “Name(s) of Defendant’s agent, employee (etc.) for whom Defendant is being held vicariously liable”, or similar, nor is some other multi-labeled Certificate of Merit for such purposes in existence.

This is some rather inventive lawyering and misuse of court process, either to needlessly prolong the case, or to harass the plaintiff.  The judges will likely not be amused.

On the other hand, the delays have allowed me to be able to see and review metadata (e.g., audit trails and other "data about data") produced from the very same EHR system that was in use at this hospital, via my legal support work in another case in the state.  It took time for that production to occur.  This will make it much harder for the hospital to pull the wool over my eyes regarding metadata discovery.

That's one reason why I'd been patient with all this.

My patience is now long expired.

My mother, the original plaintiff, is unavailable for comment.

-- SS

The lengths a hospital will go to in order to protect their EHR - Motion for Reconsideration of Denial of Motion for Reconsideration of Denial of Objections

My mother was injured and then died as a result of an EHR foul-up.  She sued the hospital where the mid-2010 accident occurred while she was still lucid, and I am now substitute plaintiff.  Yet the case has been held up through the defense (mis)using court process to stall.

It seems the lengths a hospital will go to in order to protect their EHRs (i.e., from Discovery by an expert such as myself, which could show many problems) are amazing.

To wit, their latest filing, in an attempt to throw a monkey wrench into the gears of the legal discovery process:

2/1/2013

Motion

BY [redacted] HOSPITAL MOTION FOR RECONSIDERATION OF JANUARY 17, 2013 ORDER DENYING MOTION FOR RECONSIDERATION OF COURT ORDER DATED JUNE 22, 2012 WITH MEMORANDUM OF LAW WITH SERVICE ON 02/01/2012

They've filed a motion asking the Court to reconsider its decision that denied their mid-2012 motion asking the Court to reconsider its denial of their objections to the legal paperwork.

Yes, that probably needs to be read several times in order to be understood; I cannot simplify it any further ...

The new motion is a mere 521 pages in length (the original Motion for Reconsideration was a slim 485; of course they charge the hospital by the hour for document preparation and electronic filing with the Court).

The major objection about the paperwork is, in essence, that a "Certificate of Merit" (a certification of case merit by a qualified medical professional) needed to be filed not just for Defendant (the hospital) but for each and every employee/agent for whom the Defendant is vicariously liable under the doctrine of Respondeat Superior:

Respondeat superior (Latin: "let the master answer"; plural: respondeant superiores) is a legal doctrine which states that, in many circumstances, an employer is responsible for the actions of employees performed within the course of their employment. This rule is also called the "Master-Servant Rule", recognized in both common law and civil law jurisdictions.

A major problem with this claim is that the law simply says otherwise.  Also, Certificates of Merit have, under the identification field where the sued party's name is penned in, the label "defendant" ... not "defendant, employees, agents, their uncles and aunts, and their little dogs too for whom defendant is vicariously liable."  Not to mention, among other issues, that such misconceptions are specifically put to rest by the actual Civil Procedural Rules Committee rules as published by the state's court administrative body:

"The [certificate of merit] rule requires the filing of only a single certificate of merit as to a claim against a defendant that is based on the activities of licensed professionals who are not named in the action."

Such a certificate was timely filed.  In fact, one Certificate was timely filed against the defendant hospital for corporate negligence, and another timely Certificate was filed for defendant's vicarious liability.

That's why the court threw out the objections, and the Motion for Reconsideration of its denial of the objections..

In defense of their position that Certificates for each person for whom the defendant is vicariously liable should have been filed (which is an especially frivolous argument since there is a statement in the law that they do not need to be named), the hospital defense ignored all plaintiff's arguments regarding the filing of the Certificates of Merit such as above.  It then cites two cases where the Certificates of Merit were filed over a year late (there is a 60 day limit) or not filed at all.  

But they didn't stop there.  The defendants also wanted the (local) court to 'certify' (give permission for) them to appeal the denial of their objections to Superior Court (the certification may be done if the issues at law are felt possibly controversial).  The local court threw that request out, too.

The defense appealed to Superior Court anyway, apparently claiming manifest injustice was done by the local court.  Several hundred more pages, more fees.  The Superior Court dismissed the appeal - or, perhaps stated more accurately, refused to even consider it.

All this eats up time.

Now, I'm not an attorney, nor do I have access to the major legal databases.  However, Google is getting to be very good at pulling up legal cases due to its indexing of many other resources, such as legal books and publications and public case docket repositories.

When I Google "Motion for Reconsideration of Denial of Motion for Reconsideration" or "Motion for Reconsideration of Motion for Reconsideration", very little comes up.  One case is from the early 1990's in the High Court of American Samoa. (If you know where that is without looking it up, you're more geographically literate than I.)

When all else fails ... throw a monkeywrench into the Wheels of Justice  ... and be paid handsomely for it!

The Defense stalling maneuvers have served to help me advise other Plaintiff's attorneys in EHR-related medical malpractice and evidence spoliation matters (the motion above will be presented at my upcoming talk at the American Association for Justice Winter Conference in Florida as an example of how far a hospital will go to protect their EHR).  

The stalling has also been serving as a useful learning experience for me regarding the working of the Court system, enhancing my abilities to assist the Plaintiff's side.  Perhaps I should be paying tuition to the Defense in my mother's case ...

(The Plaintiff's Bar - and injured patients - need help.  I have, for instance, learned in sworn testimony of hospital IT experts that some major commercial EHR's permit a clinician to alter their notes prior to their final "signoff" and resultant "record lock" -- which can be days later -- without leaving an electronic trail or any evidence whatsoever of the changes.  I have learned that some EHR's permit late-entered notes to appear in apparent chronological sequence in an EHR printout with whatever apparent time is desired.  I have learned that the audit trails and other metadata themselves of major commercial EHRs can be altered by someone with sufficient database privileges with no trace, save for perhaps database engine transaction logs on backup tapes, highly difficult to retrieve.)

In effect, one motive for hospitals to acquire EHR's might be the EHR's abilities to facilitate "retroactive risk management" through, in essence, alteration of history.

Finally, I hope I won't have to see a "Motion for Reconsideration of Denial of Motion for Reconsideration of Denial of Motion for Reconsideration of Denial of objections to the paperwork."

-- SS